Fegley and Salway - [2015] FamCA 1117

FAMILY COURT OF AUSTRALIA

FEGLEY & SALWAY

[2015] FamCA 1117

FAMILY LAW – CONTRAVENTION – Where the father asserts the mother has breached orders of the court – Where the mother denies that she has contravened the orders on three occasions – Where the father has failed to establish a prima facie case on the first charge – Where the father has established the second charge that the mother contravened an order – Where, in respect to the second charge, the mother wishes to assert a reasonable excuse for contravening an order – Where the father does not press the third charge

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336
Dickens & Dickens & Anor (No 2) [2015] FamCA 256
Jones v Dunkel (1959) 101 CLR 298

APPLICANT:

Mr Fegley

RESPONDENT:

Ms Salway

INDEPENDENT CHILDREN’S LAWYER:

Ms S Mahony

FILE NUMBER:

SYC

6044

2013

DATE DELIVERED:

14 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

18 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Breeze

SOLICITOR FOR THE APPLICANT:

H A Miedzinski Lawyers

SOLICITOR FOR THE RESPONDENT:

Crawford Ryan Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mahony Family Lawyers

Orders

I find that the father has established a prima facie case that on 5 February 2015 the mother contravened order 4(b) made 12 June 2014.
The mother is to file and serve any affidavit setting out the evidence upon which she wishes to rely in respect of reasonable excuse on or before 10 February 2016.
The matter is adjourned to 2.45pm on 19 February 2016.
The father’s Application for Contravention filed 12 February 2015 is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fegley & Salway has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6044 of 2013

Mr Fegley

Applicant

And

Ms Salway

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

There are three children of the marriage, B born … 1999, C born … 2002 and D born … 2008. Mr Fegley (“the father”) claims that Ms Salway (“the mother”) has breached orders by physically disciplining C on 3 February 2015 and by not making D available to spend time with the father on 5 February 2015. The father had also claimed the mother had breached an order by allowing B to read a letter from the father’s solicitors to the mother’s solicitors.
The mother in submissions did not raise any issue in relation to her not knowing about the orders of 2 April 2014 and 12 June 2014.
The mother denied that she had contravened the orders as alleged in the first two charges. The father did not proceed with a third charge.

THE FIRST CHARGE

By way of an Application for Contravention filed 12 February 2015, the father asserts that on 3 February 2015 at approximately 8.00am…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fegley and Salway

Details

AGLC: Fegley and Salway [2015] FamCA 1117
Case: [2015] FamCA 1117
Decision Date: 14 December 2015

CaseChat Overview and Summary

In *Fegley and Salway*, heard before Watts J, the father alleged that the mother had contravened a specific order made on 12 June 2014. The dispute centred on whether the mother's actions on 5 February 2015 constituted a breach of this existing court order.

The primary legal issue before the court was to determine whether the father had established a *prima facie* case that the mother had contravened order 4(b) of the 12 June 2014 order. The court was also required to consider any evidence the mother might present to demonstrate a reasonable excuse for any such contravention.

Watts J found that the father had indeed established a *prima facie* case of contravention. However, the court acknowledged the mother's right to present evidence of a reasonable excuse. Consequently, the mother was ordered to file and serve any affidavit supporting a reasonable excuse by 10 February 2016, with the matter adjourned for further consideration. The father's application for contravention was otherwise dismissed, indicating that only the specific contravention alleged on 5 February 2015 was being pursued at that stage.

Orders

Orders of the court

I find that the father has established a prima facie case that on 5 February 2015 the mother contravened order 4(b) made 12 June 2014.

The mother is to file and serve any affidavit setting out the evidence upon which she wishes to rely in respect of reasonable excuse on or before 10 February 2016.

The matter is adjourned to 2.45pm on 19 February 2016.

The father’s Application for Contravention filed 12 February 2015 is otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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